Contentions

Lindsay Graham has plainly been the Republican most open to voting for Sotomayor. At the very least he has been candid that she is getting through and seems disinclined to vote against her based on her speeches. In this round he again signaled he’d be inclined to vote for her. But . . . he spent quite a bit of time on the Second Amendment and whether she considers the right to bear arms “fundamental” and therefore applicable to the states. I would think of all the issues which have come up at the hearing there is none more dear to the hearts of his constituents than the Second Amendment.

And there is concern, perhaps growing concern, that Sotomayor has been entirely evasive on the right to bear arms. She could not even bring herself to define the “right to self-defense” when responding to Sen. Tom Coburn’s questions. And this is why the NRA, which has laid low so far, is becoming increasingly focused on the Sotomayor hearings. The Hillreported yesterday:

The National Rifle Association (NRA) has questioned Sonia Sotomayor’s fitness to serve on the Supreme Court, a troubling sign for the nominee in what has so far been a smooth confirmation hearing. . . . Wayne LaPierre, executive vice president of the NRA, blasted Sotomayor for ruling that the Second Amendment’s protection of gun rights does not apply to state and local governments and for being “evasive” when asked about whether gun ownership is a fundamental right.

Earlier in the month Chris Cox, the executive director of the NRA’s Institute for Legislative Action, wrote a letter saying the NRA wouldn’t be announcing a formal position but warned that “should her answers regarding the Second Amendment at the upcoming hearings be hostile or evasive, we will have no choice but to oppose her nomination to the Court.”

So how did she do with Sen. Graham? She didn’t give any assurance either to her belief that the Second Amendment is “fundamental” or even suggest how she would go about deciding it. Was Graham assured on this point? Would Second Amendment advocates be? I don’t see how they possibly could. But with this issue and the meaning of Heller hanging in the balance, Sotomayor’s weaving and bobbing may give some senators pause. After all, with the Seventh and Ninth Circuits divided on incorporation (i.e. whether the Second Amendment is applicable to the states), Sotomayor’s persistent dodge that she will follow “precedent” rings awfully hollow.

UPDATE: And suggesting my sense is correct that the Second Amendment is looming larger, Sen. Coburn uses a substantial amount of his time to grill her on just that issue and why she won’t be more forthcoming on her analysis of whether the Second Amendment is fundamental.

UPDATE II: For the first time Sotomayor gets snippy, asking if he wants a judge to come there and say something is unconstitutional. Actually, he and Graham were only trying to understand how she would assess whether a right is fundamental.